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A three-judge panel on U.S. Court of Appeals for the District of Columbia Circuit
rejected arguments from John Holdren, director of the White House Office of Science
and Technology Policy, that e-mails stored on a private scientific research organization's
server were not covered under FOIA because the agency did not control them and could
not conduct a search for the records.

“If a department head can deprive the citizens of their right to know what his department
is up to by the simple expedient of maintaining his departmental e-mails on an account
in another domain, that purpose is hardly served,”
Senior Judges Harry Edwards and David Sentelle wrote. “It would make as much sense
to say that the department head could deprive requestors of hard-copy documents by
leaving them in a file at his daughter’s house and then claiming that they are under
her control.”

Judge Sri Srinivasan wrote a separate, concurring opinion. The appeals court sent
the case back to the U.S. District Court for the District of Columbia for further
proceedings, noting it was not ordering the release of any specific document and that
there may not be any records ultimately subject to FOIA.

‘Makes Little Sense.'

The Competitive Enterprise Institute, a libertarian nonprofit organization, originally
filed a FOIA request in October 2013 seeking e-mails relevant to official governmental
business that Holdren sent from an account with the Woods Hole Research Center, where
he previously served as president.

In denying the FOIA request and throughout subsequent litigation, the government argued
the records fell outside the scope of the opens record law because it was not physically
in control of them and therefore unable to search them. But the appeals court said
that claim “simply makes little sense.”

“If the agency head controls what would otherwise be an agency record, then it is
still an agency record and still must be searched or produced,”
the court said.

The decision noted Holdren's office may have “valid exemption claims” for some of
the records on the secondary account or that the Woods Hole account may not contain
any responsive e-mails, but said it was up to the lower court to rule on those questions.

Srinivasan's Concurrence

Srinivasan authored a concurring opinion underscoring that the court's decision did
not preclude the agency from having legitimate claims to withhold records from FOIA.

“The agency should also be free to present additional facts that would make it apparent
that Holdren is holding the e-mails in his private account under a claim of right,”
Srinivasan wrote. “I would conclude here only that a current official’s mere possession
of assumed agency records in a (physical or virtual) location beyond the agency’s
ordinary domain, in and of itself, does not mean that the agency lacks the control
necessary for a withholding.”

The decision came on the same day the head of the Federal Bureau of Investigation
said his agency would not pursue criminal charges against Democratic presidential
nominee Hillary Clinton over her use of a private e-mail account while serving as
secretary of state, but described her actions as “extremely careless.”

Questions over the use of private e-mail accounts have popped up repeatedly throughout
Obama's administration. Former Environmental Protection Agency Administrator Lisa
Jackson faced questions over her e-mail habits in 2013 and whether she properly preserved
records.

To contact the reporter on this story: Anthony Adragna in Washington at
aadragna@bna.com

To contact the editor responsible for this story: Larry Pearl at
lpearl@bna.com

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